Stanislaus Cnty. Cmty. Servs. Agency v. A.C. (In re R.C.)

In re R.C., a Person Coming Under the Juvenile Court Law.

STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. A.C., Defendant and Appellant.

F084189

California Court of Appeals, Fifth District

December 6, 2022

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Stanislaus County No. JVDP-20-000127 Annette Rees, Judge.

Jacques Alexander Love, under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Boze, County Counsel, and Lindy GiacopuzziRotz, Deputy County Counsel, for Plaintiff and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

A.C (Mother) and F.G. (Father) are the parents of R.C., now three years old. In 2020, R.C. was taken into protective custody upon Mother's arrest in Riverside County. The case was subsequently transferred to Stanislaus County and, in 2021 R.C. was made a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b)(1) and (g).^[1] Mother timely appeals the juvenile court's order terminating her parental rights under section 366.26.^[2] Father is not a party to this appeal.

Mother's sole claim is that, on R.C.'s paternal side, the Stanislaus County Community Services Agency/Child and Family Services (the Agency) and the juvenile court failed to comply with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA) and related California law with respect to the duty of inquiry, and that remand for an adequate inquiry is required.^[3] (§ 224.2, subds. (b), (e).)^[4] The Agency disputes that its inquiry was deficient and maintains no reversible error occurred.

As set forth herein, on R.C.'s paternal side, the Agency did not inquire of anyone other than Father, despite Father's claim of potential Navajo ancestry through paternal great-grandfather, and although notice was sent to a representative with the Navajo tribe, the notice did not include relevant identifying information. (§ 224.2, subds. (b), (e).) As a result of these deficiencies, the juvenile court's finding that ICWA does not apply is unsupported by substantial evidence of a proper, adequate, and duly diligent inquiry and the court abused its discretion in concluding otherwise. (§ 224.2, subd. (i)(2); In re K.H. (2022) 84 Cal.App.5th 566, 589-590 (K.H.); accord, In re E.C. (2022) 85 Cal.App.5th 123, 134 (E.C.).) Moreover, the error is prejudicial and requires reversal for correction.

As we explained in our recent decisions in K.H. and E.C., "while we generally apply a Watson^[5] likelihood-of-success test to assess prejudice, a merits-based outcome-focused test is not always appropriate because it cannot always adequately measure the relevant harm." (K.H., supra, 84 Cal.App.5th at p. 609, italics omitted, citing In re A.R. (2021) 11 Cal.5th 234, 252-253 (A.R.); accord, E.C., supra, 85 Cal.App.5th at pp. 153154.) "[W]here the injury caused by the error is unrelated to an outcome on the merits, tethering the showing of prejudice to such an outcome misplaces the measure, at the expense of the rights the law in question was designed to protect." (K.H., supra, at p. 609, citing A.R., supra, at p. 252; accord, E.C., supra, at p. 154.) Error under ICWA and related California law presents such an exception, and determining whether an error in this context is prejudicial requires viewing the error through the lens of ICWA's remedial purpose. (K.H., supra, at p. 588, citing A.R., supra, at pp. 252-254; accord, E.C., supra, at p. 135.) These laws are intended to ensure the rights of Indian children and Indian tribes are protected in dependency proceedings by giving tribes concurrent jurisdiction and the right to intervene when the proceeding involves an Indian child. (In re W.B. (2012) 55 Cal.4th 30, 48 (W.B.), citing 25 U.S.C. § 1911(b)-(c) &Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 36 (Holyfield).) "Many cases do not proceed beyond the inquiry stage in the ICWA compliance process and, therefore, ensuring adequacy and accuracy at this step is critical if the tribes' right to notice in proceedings that may involve an Indian child is to be meaningfully safeguarded, as was intended by Congress and our state Legislature. (K.H., supra, at p. 591, citing A.R., supra, at pp. 252-253.)" (E.C., supra, at p. 135.)

As in K.H. and E.C., "the error [here] is prejudicial because neither the [A]gency nor the court gathered information sufficient to ensure a reliable finding that ICWA does not apply and remanding for an adequate inquiry in the first instance is the only meaningful way to safeguard the rights at issue. (A.R., supra, 11 Cal.5th at pp. 252-254.) Accordingly, we conditionally reverse the juvenile court's finding that ICWA does not apply and remand for further proceedings consistent with this opinion, as set forth herein." (K.H., supra, 84 Cal.App.5th at p. 591; accord, E.C., supra, 85 Cal.App.5th at p. 135.)

PROCEDURAL HISTORY^[6]

I. Petition and Detention

R.C. is the only child of Mother and Father, who were not married but had a years' long on-and-off relationship, and he did not have any half-siblings when this proceeding commenced. Mother and R.C. lived separately from Father, but all three resided in Stanislaus County. On April 26, 2020, the Blythe Police Department responded to a report that Mother was intoxicated and attempting to fight with people in a motel parking lot. Mother, who was planning to travel by bus to Oklahoma that night to visit a friend, was arrested for public intoxication. R.C., almost 12 months old, was taken into protective custody and then admitted to the hospital for observation and testing due to concern over possible developmental delay and malnutrition. R.C.'s preliminary examination showed a developmental delay of approximately three months and a left radial fracture in the healing stage, possibly due to abuse. Father was not present with Mother and R.C. in Riverside County, but was reached by telephone.

On April 28, 2020, the Riverside County DPSS-CPS (the Department) filed an original petition on behalf of R.C. under section 300, subdivisions (b)(1) (failure to protect) and (g) (no provision for support). As to Mother and Father, the petition alleged a history of domestic violence under section 300, subdivision (b)(1) (count b-5). As to Mother, the petition alleged four counts under section 300, subdivision (b)(1): intoxication (count b-1), neglect of health and safety based on R.C.'s healing fracture (count b-2), history of methamphetamine abuse (count b-3), and failure to provide a stable, suitable living environment and no means of support (count b-4). As to Father, the petition alleged failure to provide adequate food, clothing, shelter, medical treatment, support, and/or protection under section 300, subdivision (b)(1) (count b-6), and no provision for support under section 300, subdivision (g) (count g-1). The petition included an "INDIAN Child Inquiry Attachment" form (Judicial Council form ICWA-010(A)), stating that R.C. is or may be eligible for membership based on Navajo ancestry and identifying the Potawatomi Cherokee tribe of Shawnee, Oklahoma.^[7]

On April 29, 2020, the juvenile court held a detention hearing. Father's appointed counsel had not yet made contact with him, but Mother appeared by telephone. Through counsel, Mother denied the allegations, raised the issue of jurisdiction given that she had been a resident of Stanislaus County for the past 16 years, and stated ICWA did not apply. Father's counsel indicated ICWA may apply with respect to Father. The court found a prima facie showing that R.C. came within section 300, subdivisions (b) and (g), ordered him detained from his parents, and ordered that Mother receive visitation for two hours per week. The court deferred a determination on jurisdiction pending an investigation by the Department and directed Mother to complete and file a "PARENTAL NOTIFICATION OF INDIAN STATUS" form (Judicial Council form ICWA-020 (ICWA-020)).

II. Jurisdiction and Transfer

On May 6, 2020, the Department mailed a "NOTICE of Child Custody Proceeding for Indian Child" form (Judicial Council form ICWA-030 (ICWA-030)) to the Bureau of Indian Affairs, the Department of the Interior, the Colorado River Indian Tribe, and the Navajo Nation.

On May 12, 2020, and on May 22, 2020, Father disclosed that his paternal greatgrandfather, J.G., told him they have Navajo heritage, although he was not sure if J.G.'s stories were factual.

On May 22, 2020, the juvenile court continued the matter to allow for resolution of ICWA issues and jurisdiction. R.C. had been deemed medically fragile and the court directed the Department to communicate with Mother regarding training or programs for medically fragile children.

On June 15, 2020, the juvenile court held a jurisdiction hearing. Under section 300, subdivision (b)(1), the juvenile court sustained the allegations against Mother as to counts b-1 through b-4, and it sustained the count b-6 allegation against Father, modified to include only failure to the provide medical treatment or protection. The court did not sustain the section 300, subdivision (b)(1), allegation against Mother and Father under count b-5 for domestic violence, and it struck the allegation against Father under section 300, subdivision (g). In light of the Department's addendum report, which stated that "based on the statements made by [Mother] and [Father], there is no evidence to imply that this family is ICWA eligible," the court found that ICWA did not apply. The court also authorized an increase and modification of visitation, and granted the Department's motion to transfer the case to Stanislaus County.

On June 29, 2020, the juvenile court in Stanislaus County found R.C was a resident, accepted the...